CONCORD, N.H. – Four years ago, amid great fanfare, New Hampshire passed a law allowing the state to indefinitely lock up the worst sexual predators. The governor called it necessary to prevent the "immeasurable" cost to children. Defense attorneys decried it as an infringement on civil rights. Prison officials prepared for dozens to be targeted.
Yet since 2007, only two men — both convicted of sexually assaulting boys — have been civilly committed.
In fact, an Associated Press review found that of the 667 cases referred to county attorneys by the state in 2007, the first year the law went into effect, and of the hundreds since, only 22 were selected for further review. Just eight passed muster for prosecution.
By comparison, neighboring Massachusetts had 263 inmates committed as sexually dangerous, and 5,200 predators were confined in indefinite treatment nationally, the AP found.
"I thought we would become overwhelmed," said Corrections Commissioner William Wrenn, who set aside 10 beds in the psychiatric unit four years ago, believing they wouldn't be enough. "Just the opposite has occurred."
The county attorneys responsible for prosecuting most cases in New Hampshire attribute the small number to the relative newness of the law and its strict definition of predator, not because of any fiscal pressure to avoid the expensive litigation. But experts who study civil commitment laws nationally say New Hampshire is bucking the trend and adhering to its "Live Free or Die" motto. In a state that does not mandate seatbelts or helmets and rarely pursues a death penalty, officials are hard-pressed to restrict personal liberties.
"New Hampshire can be wonderfully, I won't say libertarian, but it takes sometimes awfully progressive views that puzzle outsiders," said Ted Kirkpatrick, a criminologist and co-director of Justiceworks at the University of New Hampshire.
By design, there are a number of hurdles in the law.
First, state prison officials refer inmates nearing release based on a list of crimes involving sexual acts that could make them subject to the law. Such crimes include rape, kidnapping and burglary.
The county attorneys must then decide who is most likely to reoffend. They then must get the OK of a three-member team headed by the state Department of Health and Human Services before moving forward with what amounts to a full trial to determine whether the person should be locked up indefinitely because he's too sexually dangerous to be free.
The process can take months, cost hundreds of hours of attorney time and thousands of dollars in expert testimony and $160,000 a year for treatment.
There has been little outrage over the lack of use of the law, even among victims' rights advocates.
"The whole premise of this law is there is a very small population of people who have a mental disorder that really makes them dangerous. That mental disorder makes it likely they will reoffend if they are not in some kind of secure environment with treatment," Assistant Attorney General Ann Rice said.
"We have known all along this was to touch on a very few people."
In 2009, prosecutors dropped their pursuit of civil commitment of William Decato, 54, of Manchester, who served eight years in prison for raping an exotic dancer and attempting to rape another. Then-Merrimack County Attorney Dan St. Hilaire said a therapist concluded Decato may have been suffering alcohol addiction and may be a sexual sadist.
However, he dropped his case after evaluations by state experts began to tilt in Decato's favor, and he didn't believe he could persuade a jury that Decato was likely to reoffend.
Two years later, Decato was charged with breaking into a home, waking a 43-year-old woman asleep on her couch, covering her face with a towel, striking her and raping her. The victim, who speaks Cantonese, was identified in court records only by her initials and could not be reached for comment.
St. Hilaire said he was "very saddened" to hear Decato had been rearrested.
Prosecutors say they are aware but insist they aren't deterred by the high costs associated with civil commitments.
Chris Keating, executive director of the public defender's office, anticipated defending 17 to 18 cases the first year the law was in effect and budgeted $250,000 to hire three attorneys and a legal secretary and to open an office in Dover. When the cases did not materialize, the next year he laid off most of the staff and cut his yearly budget to $100,000.
So far, only William Ploof and Thomas Hurley, both 51 and of Manchester, and both convicted of sexually assaulting boys, have been civilly committed. A third man faces a hearing next month on the possibility of being committed.
Democratic Gov. John Lynch, who signed the law that went into effect in 2007, says it is working as intended.
"There were some critics back then who thought this law was going to cast a wide net and end up incarcerating beyond his or her sentence many more people than currently exist today," he said.
The advocacy community isn't frustrated, said Amanda Grady of the New Hampshire Coalition Against Domestic and Sexual Violence.
"I am the first one who gets called and I'm not hearing it," she said.
She attributes the lack of any outrage to ignorance that the civil commitment option exists for prosecutors.
"The public clearly wants lifetime supervision," Grady said.
But she said she trusts New Hampshire's prosecutors to pick the option that best fits the individual case — whether it be monitoring felons through parole, civil commitment or the state's sex offender registry.
Lawrence Fitch, associate law professor at the University of Maryland Law School, has been following the states' laws on the issue for years and says they don't vary much. Fitch said he doubted New Hampshire's law makes it harder than other states to commit predators.
"It's more cultural. In New Hampshire, you deal with this in a different way," he said.
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